Brown v. State

• Decision Date: 30 August 1966
• Docket Number: No. G--347,G--347
• Citation: 191 So.2d 296
• Parties: Ernest BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 296

191 So.2d 296

Ernest BROWN, Appellant, v. STATE of Florida, Appellee.

No. G--347.

District Court of Appeal of Florida, First District.

Aug. 30, 1966.

T. Edward Austin, Jr., Public Defender, and Mercury N. Kavouklis, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Judge.

The appellant was charged with and convicted of the crime of robbery and has taken this appeal from the judgment of conviction entered by the Criminal Court of Record of Duval County and from an order entered by that court denying his motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.

The sole question raised by the appellant for our determination in this appeal is whether the trial court erred in not charging the jury concerning the lesser included offense of petty larceny when the appellant was charged with the crime of robbery.

At the conclusion of the evidence during the trial, the appellant requested 'a verdict form on larceny,' which request the trial court denied.

After the court instructed the jury the said attorney announced to the court that he had no objections to the charges as given, but did object to the court's not having given a charge on larceny. The record on appeal, however, does not set forth the verdict form on larceny as requested by the appellant, nor does not record set forth any written request by the appellant that the court give an instruction on larceny.

Because of the appellant's failure to file before the court at the trial a written request for an instruction on larceny, the appellee contends in this appeal that the appellant failed to comply with the provisions of Section 918.10, Florida Statutes, F.S.A., and hence 'has failed to overcome the presumption of correctness of the trial court's verdict, judgment and sentence.' The pertinent provisions of that section are in paragraphs (3) and (4) thereof, which read as follows:

'(3) At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

'(4) No party may assign as error or grounds of appeal, the giving or the failure to give an instruction, unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

In answer to the appellee's foregoing contention, the appellant invokes the last sentence of Section 919.16, which section provides:

'Conviction of attempt; conviction of included offense. Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.'

In further support of his position, the appellant cites and relies upon the decision of the Supreme Court of Florida in Jimenez v. State, 158 Fla. 719, 30 So.2d 292 (1947) and the decision of this court in Allison v. State, 162 So.2d 922 (1964), for the proposition that the trial court has the duty to charge the jury on lesser included offenses regardless of the accused's failure to request the trial court to so charge.

In the said Jimenez case our Supreme Court held that assault with intent to commit rape is a lesser included offense within the crime of rape, and said:

'So we hold that it was the duty of the trial court to charge the jury as to the lesser offense of assault with intent to commit rape, which offense was in law included in each count of the indictment, and the defendants were not entitled to have the jury directed to either convict of rape, or to acquit.'

In Allison v. State, supra, we expressly followed the just-quoted holding, and stated:

'In the present case, therefore, under the holding of our Supreme Court in the Jimenez case, supra, and in accordance with the mandate of the statute (Sec. 919.16), we think that the trial court had a duty to instruct the jury to the effect that, if they are unable to find from the evidence beyond a reasonable doubt that the defendant was guilty of the crime charged--assault with intent to commit rape--they may consider the evidence to determine whether the defendant is guilty of one of the lesser included offenses, defining and explaining the latter offenses. The court had this duty to so charge the jury even if the defendant had not requested such a charge; but the record before us affirmatively shows that at the conclusion of the instructions the defendant's attorney requested that the court charge the jury as to any lesser included offenses, which request the court denied.'

In the said Allison case the appellant had requested a charge on a lesser included offense, so our observation as to the situation existing 'even if the defendant had not requested such a charge' must be judicially regarded as pure obiter dictum. Nevertheless, upon a new examination of our said dictum, we are convinced that it states a sound rule in harmony with the highest precepts in the administration of criminal justice, as well as being in accordance with the mandate of Section 919.16 quoted above, that the court 'shall charge the jury in this regard.'

The fact of our adherence to the said rule does not mean that the error of a trial court in failing to perform the said duty necessarily constitutes a harmful or prejudicial error that would justify the reversal of the judgment of conviction.

Another procedure that is important in the administration of criminal justice is the apparent requirement in paragraphs (3) and (4) of Section 918.10, quoted above, that a party may file with the trial court written requests for instructions. Without such written requests reflected, in the record on appeal, a proper appellate review of a judgment of conviction is rendered most difficult. Thus, an accused is given by law a double protection of his right to have the jury instructed concerning lesser included offenses, with the above-described duties upon both the trial court and the defense counsel.

Our review of the decisional law in the area of lesser included offenses, shows us that, regardless of whether or not the defense counse has made a written request for instructions on lesser included offenses, the trial court need not instruct the jury on lesser included offenses unless all of the following circumstances exist, under the following principles established in Florida:

1. The lesser offense is necessarily included within the greater offense under the standards laid down by the statutory and decisional law of this state.

2. All of the essential elements of the lesser included offense must be alleged in the indictment or information under which the accused is charged and tried.

3. Sufficient competent, substantial evidence must have been adduced at the trial to establish all of the essential elements of the lesser offense. This rule is inherently embodied in innumerable Florida decisions, but was expressly stated by this court in our recent decision in Stewart v. State, 187 So.2d 358 (1956).

4. The evidence at the trial must be reasonably susceptible of inferences by the jury that the accused committed the lesser offense but not the greater offense charged in the indictment or information. This rule, of course, is a refinement of the above rule numbered 3. We recognized this rule in Johnson v. State, 173 So.2d 487 (Fla.App.1965), and Silver v. State, 174 So.2d 91 (Fla.App.1965), as discussed below. We stated the same rule in Allison v. State, supra, also discussed below.

5. The state of the evidence must be such that it would be appropriate to charge the jury to the effect that, if they are unable to find from the evidence beyond a reasonable doubt that the accused is guilty of the greater crime charged, they may consider the evidence to determine whether the accused is guilty of one of the lesser included offenses. See the above quotation from Allison v. State, supra. See also Jimenez v. State, supra.

The foregoing five rules are designed to protect the rights of both the accused and society in the trial of criminal cases. Those rules are basically founded upon the fundamental principle in criminal law that no man may be convicted of a crime unless he is charged with that crime and unless sufficient substantial, competent evidence is adduced at his trial to support a finding by the jury, as the triers of the facts, that he is guilty of that crime beyond a reasonable doubt. Those rules are further designed to avoid the futility of requiring the trial court to instruct the jury on a lesser included offense when, under the charge of the indictment or information or under the evidence at the trial, the jury's verdict of guilty of the lesser offense would be legally improper. The rules also serve to preserve the accused's valuable privilege of having the jury informed that he may be found guilty of a lesser included offense, rather than the greater offense that is charged against him.

Applying the above five rules...